The Supreme Court of Canada struck down the key provisions of controversial immigration security certificates yesterday as being grossly unfair to terrorism suspects, and the clock began to tick on a year-long grace period in which Parliament must fashion an acceptable substitute.
The historic, unanimous decision left the law in limbo and muddied already unclear waters for the suspects directly affected by this ruling. The federal government will now have to scramble to find a mechanism that better balances civil liberties with national security.
In its 9-0 ruling, the court refused to mend the controversial provisions themselves, but made it clear that any future law must allow defendants to know the case against them and to mount a meaningful defence.
The ruling also paid careful attention to fears of terrorism, and to the precarious task legislators face in protecting national security from potentially horrific threats. But it said that, ultimately, any restrictions on civil liberties must be minimal.
The three appellants who won yesterday's challenge — Adil Charkaoui, Mohamed Harkat and Hassan Almrei — have lived for years in fear of being deported back to countries where they say they face torture and death.
John Norris, a lawyer for Mr. Almrei, said: "I would be shocked if the government moved to remove any of these men in the next year. Even if it tried to, I am quite sure the Federal Court would step in and prevent that happening. They all face torture."
In a news release yesterday, Public Safety Minister Stockwell Day said the government is reviewing the court's ruling and "intends to respond in a timely and decisive fashion to address the court's decision." However, he also took shots at an Opposition he deemed "soft on security and soft on terrorism," saying the Conservative government "remains unwavering in its determination to safeguard national security."
Mr. Charkaoui, who was detained in 2003, said yesterday that he will fight to clear his name, and joined critics who accuse the government of trying to politicize Canada's court system. He is still under tight security provisions, such having to wear a tracking device around his belt.
The security-certificate procedure was created almost 30 years ago and was used against about two dozen foreign nationals from various countries prior to 2001.
Supporters of the detainees and their lawyers were exultant about the ruling yesterday. Mr. Harkat's wife, Sophie Harkat, wept uncontrollably as she tried to describe to an Ottawa press conference what it has been like to see her husband endure years of solitary confinement and, more recently, highly restrictive house arrest. The terms of his arrest included having his home phone calls intercepted and severe restrictions on whom he could meet and when he could leave home.
"It has been four years of hell for us," she said. "He has been my source of motivation and inspiration and, unfortunately, he can't be here to share this with me today."
Alex Neve, Canadian director of Amnesty International, said the decision will reverberate through legislatures and courtrooms around the world, and provide a model for other countries attempting to deal with security at a time of increased international terrorism.
"The government has a year to come up with something. A year isn't very long in law reform, so this is something they are going to have to work on very quickly and do so in a very transparent and accountable fashion that allows for consultation.
"At the same time, a year is too long for the men themselves, who have been held in detention in some instances for six years, and can't wait another year for a fair process to be designed. None of them are going to be out tomorrow — that is clear. But I think real pressure comes from this decision. The Supreme Court of Canada has said unanimously that this process is unacceptable. We'll certainly be calling on the government to fashion something much more immediate that remedies their cases — whether or not it becomes the long-term model Canada decides to use."
